Monday, January 08, 2018

The Overlap Between Impeachment and the 25th Amendment

by Michael Dorf
To make clear that I am about to engage in a purely "academic" exercise, I begin with the obvious political reality: (1) There is virtually no chance that Donald Trump will be removed from the presidency via the 25th Amendment based on his past conduct or his inevitable future conduct of a similar sort; and (2) absent irrefutable evidence of crimes on the order of cannibalistic murder personally committed by Trump, there is also virtually no chance that Trump will be removed from the presidency via impeachment, even assuming a strong midterm wave election in which Democrats take the House and the Senate, because Republicans will still have enough votes in the Senate to block removal.

That is the reality, because it is now clear that there are very few Republicans willing to stand up to Trump when it really matters. I suppose that it is possible that a sufficient drubbing in the midterm elections could change that--which is why I hedged a bit by saying "virtually" twice in the prior paragraph. For practical purposes at least for now, both impeachment and invocation of the 25th Amendment--no matter how justified--are a mirage.

Nonetheless, because I am an academic who values academic exercises, I want to use the current moment--in which our president has issued a self-refuting tweet branding himself a "stable genius" in response to the report in Fire and Fury that various members of his own inner circle regard him as unfit for office--to make some observations about the partial interchangeability of removal by impeachment and removal via the 25th Amendment.

This post is prompted by my initial puzzlement at some of the public debate about impeachment and the 25th Amendment. Here's a stylized typical conversation I've heard lately that is, at least initially, puzzling:

Q: Do you think Trump can be impeached?

A: Can? Sure. Will he be? Not with this Congress or any Congress we're likely to see.

Q: That's too bad. Hey, what about the 25th Amendment? Could Trump be removed that way?

A: Now you're not making any sense. For that to work, Trump would either have to declare himself unable to discharge the duties of his office, which he would never do, or a majority of his cabinet would have to so declare him--and in the extremely unlikely event of the latter happening, Trump would surely contest the finding, which could then only be overridden by a 2/3 vote of both houses of Congress. In other words, as a practical matter, removal via the 25th Amendment is more difficult than removal via impeachment. Impeachment requires only a simple majority vote in the House followed by a 2/3 vote (of those present) in the Senate for removal.

Q: Oh. Damn.

Here's what I find puzzling about both the question and the answer: They tend to treat impeachment and removal for commission of treason, bribery, or other high crimes and misdemeanors as an interchangeable mechanism with removal based on incapacity. But the two mechanisms seem designed for different circumstances.

Here's an analogy. Suppose I want a job working for the New York Philharmonic. Suppose further that in order to get a job as principal violinist, I need to go through a series of auditions, with the conductor making an up-or-down decision at the end. Meanwhile, suppose that in order to get a job as one of three in-house lawyers for the Philharmonic I need to go through a series of interviews and then the other two lawyers as well as the conductor must all agree that they want to hire me. Is it clear that it's "easier" to get a job as principal violinist than as a lawyer for the New York Philharmonic because I must secure the votes of two people in addition to the conductor to be hired as a lawyer but only need to secure the vote of the conductor to be hired as principal violinist?

Hardly. It would be effectively impossible for me to get a job as a violinist for the Philharmonic, because I don't play the violin. I might not get the job as a lawyer, but at least I have relevant training. If we want to know which job is easier for me to get, we need to know something about the substantive qualifications, not just the voting procedure used to judge those substantive qualifications.

So too, one might well think, about impeachment and the 25th Amendment. Whether a president is unable to discharge the duties of his office is a different substantive question from whether he has committed treason, bribery, or other high crimes and misdemeanors that warrant removal. And that is why I found discussions like the hypothetical dialogue I wrote above puzzling. They reduce the differences between removal by impeachment and removal by the 25th Amendment to the respective procedures, without attending to the underlying substantive differences.

Upon reflection, however, I am no longer puzzled. I have come to see the substantive differences between impeachment and the 25th Amendment as much smaller than the differences between playing the violin and working as a lawyer. An analogy to the line between criminal justice and civil commitment illustrates why.

In Kansas v. Hendricks, the Supreme Court upheld a state statutory scheme that allowed a person who had been tried, convicted, and sentenced for committing a crime to be held as a "sexually violent predator" in an ostensibly non-punitive setting even after he had completed his sentence. The Court rejected due process, double jeopardy, and ex post facto objections. Justice Breyer (joined by Justices Stevens, Souter, and in part Ginsburg) dissented. Because of particular features of the Kansas statutory scheme, they thought that the nominally civil confinement that followed the criminal sentence was merely additional criminal punishment in disguise. But notably, even the dissenters agreed with the majority that it would be possible, in principle, for someone who has served a criminal sentence to be subjected to subsequent civil confinement, even if the same underlying conduct that gave rise to the initial criminal conviction and sentence were part of the basis for the civil confinement order.

We sometimes tend to think that antisocial behavior must be either the product of a condition like a mental illness or the result of a free and thus criminally culpable choice. In this picture, punishment for crime and civil confinement are mutually exclusive alternatives. Yet in reality, the Venn diagram of antisocial behavior includes an area of substantial overlap, as in the following:

Note that I'm not saying that Kansas v. Hendricks was rightly decided. Arguably, even the dissenters went too far in allowing, if only in principle, a state to commit someone civilly after he has served a criminal sentence for behavior that was also the basis for concluding that he needs to continue to be confined. One might apply a rule under which conduct falling within the red area of overlap can be treated by the state as either criminal or a basis for civil confinement but not both.

My point here is that whichever of those approaches one adopts--the majority in Hendricks, the dissent in Hendricks, or the still-more-civil-libertarian approach in which the state must choose between the two options--there is still an area of overlap. The goals of civil confinement and criminal punishment are not entirely different; both serve a public safety interest. And there is a substantial area of behavioral overlap.

We can say the same thing about the 25th Amendment and impeachment. These are different mechanisms for achieving overlapping goals, and there will be cases in which the underlying conduct could be classified as satisfying both. I take it that is the real reason why people move easily between talking about impeachment and talking about the 25th Amendment, at least with respect to Trump. Each mechanism serves the ultimate goal of ousting a dangerously unfit president whose words and deeds daily manifest his unfitness. And Trump's conduct seems both culpable and the product of some cognitive and/or emotional impairment.

* * *Postscript: Readers who find the foregoing interesting may wish to pre-order the forthcoming terrific book on impeachment by Laurence Tribe and Joshua Matz, To End a Presidency. I read it in draft and found it chock full of interesting analysis and historical discussion.

18 comments:

As an alternative there is also the broad "pardon" power of a president (perhaps not of himself) followed by resignation and then the new president's exercise of the pardon power regarding the resigned president. I recall precedent.

The overlap pops up in this case because there is a general sentiment for Trump specifically that it is patently clear we need to get him out of office by any means necessary. In another case, impeachment and 25A would be significantly different given the gap between physical/mental incapacity and wrongdoing. It is notable we are using a case involving a sexually violent predator statute in the discussion. But, yes, there is an overlap as noted in the text. Ditto a third option not likely to happen any time soon: resignation for the good of the country.

How about resignation for the good of the Trump brand (and Trump family members)? Trump might follow the late Sen. George Aiken's "declare victory" and get out of Vietnam approach by declaring he has won and made "America Great Again" and will put his name on more buildings throughout the world. Still not likely?

To follow up with what Joe said - the issue people care about is getting him out of office. There are two ways to (legally) force a president out of office, and so it makes perfect sense that people would be curious about the odds of using either one successfully. And actually, as you point out, the substantive issues underlying each process literally don't matter, because at the end of the day, both processes are political, not substantive. Republicans won't vote to remove Trump, either because of impeachment or because of the 25th Amendment, because to do either is politically undesirable to them. So if the politicians are treating them as just manifestations of politics, why wouldn't random people do the same?

If some catastrophic event were to occur due to Trump's incompetency or deliberate act, some people might ask the politicians why they treated impeachment and/or the 25th A as just manifestations of politics. These constitutional remedies may be inadequate in the age of Trump, but I can't imagine that a second constitutional convention could adequately address the Trump phenomenon. (Maybe we'll hear from Sandy Levenson on this.) That the processes are political does not mean that they can't be substantive. Nixon fought back during Watergate but eventually the politicians in effect forced Nixon to resign. Perhaps Nixon eventually had a sense of shame.

I'm much less sure than you that, were some evidence of a clearly impeachable offense actually produced, a meaningful number of Republicans wouldn't vote for impeachment. Nixon was safe from impeachment thanks to Republican minorities, in spite of a substantial body of evidence of impeachable offenses, until incontrovertible evidence of an incontrovertibly impeachable act surfaced. I don't know what cases you're relying on when you say that very few Republicans are willing to stand up to Trump when it "really matters," but I suspect they're all entirely distinguishable from proof that he did something undeniably impeachable.

I think that if clear evidence surfaced that Trump authorized coordination with the Russian government on the release of hacked DNC emails, or if evidence surfaced that he instructed people in the White House or campaign to lie to the FBI about their contacts with representatives of the Russian government during the campaign (rather than the transition), or if conclusive evidence surfaced that Trump took various steps to kill the investigation of his campaign, not because he thought it was meritless or detrimental to foreign relations, but because he wanted to cover up wrongdoing of which he had knowledge, then I do believe that enough Republicans would vote for impeachment to take impeachment over the top. I understand that some people could set the threshold for impeachment somewhere lower, but I don't think that setting it where I outline necessarily reflects a partisan bias; that's what I would need to see to vote to impeach, and I don't see myself as a partisan at all. Actually, I think one has to be quite partisan, or eccentrically committed to presidential noninterference with law enforcement, to think it impeachable for a president to attempt to stop or thwart an investigation of his campaign in various ways that aren't unlawful in and of themselves (as witness tampering would be, but firing an FBI director, or asking - or even ordering - the FBI director to not investigate someone, or dictating a misleading news release are not), without any proof that his motive for wanting to frustrate the investigation is to prevent investigators from discovering unlawful conduct on his part or that of his subordinates.

All of us appreciate the engagement in an 'academic exercise' by Mr. Dorf because his post and the comments are both interesting and entertaining. Hopefully Mr. Dorf and Mr. Buchanan and Ms. Colb and the others who post will now turn to the Supreme Court, because today was one of the the worst days in the history of the Court.

First of all the Court declined to hear a challenge to a Mississippi law that essentially enshrined discrimination in a public accomodations/public commerce setting. From the WSJ.

"The Supreme Court declined Monday to consider a challenge to a Mississippi law authorizing individuals and merchants to deny service to same-sex couples on the basis of “sincerely held religious beliefs or moral convictions.”

Does this mean there are not even four Justices who think that bigotry, prejudice, hatred etc towards same sex couples cannot be written into law? If so, what does this say about America and the decline of decency, equality and equal protection?

But the worst thing that happened today was a dissent by Clarence Thomas, joined by Alito and Gorsuch, thus forever ending any discussion that Gorsuch would somehow not be a terrible Justice. The case before the Court was an appeal by a death row inmate challenging his conviction/sentence because one of the jurors was a virulent racist. How do we know he was a racist. Well he gave a sworn statement that he was. From the NYT, and if they can print the racial epithet I think it is ok, but I will blank it out.

“The Freemans are what I would call a nice Black family,” Mr. Gattie wrote. “In my experience I have observed that there are two types of black people. 1. Black folks and 2. Nxxxxxxxs.”

“Because I knew the victim and her husband’s family and knew them all to be good black folks, I felt Tharpe, who wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did,” Mr. Gattie wrote.

“After studying the Bible,” he added, “I have wondered if black people even have souls.”

Clarence Thomas dismissed this with the following words.

"Mr. Tharpe was bound to lose in the long run given the difficulty of challenging state capital convictions in federal court, Justice Thomas wrote. He added that Mr. Gattie had been drinking when he signed the affidavit and later submitted a second one saying he had not voted for the death penalty based on Mr. Tharpe’s race."

Wow, notice the horrific legal crap. Thomas, without benefit of knowing anything about the trial upholds the conviction. And he excuses the juror by saying he had been drinking when he signed the affidavit. And of course Thomas believes a second affidavit about the juror not voting for the death penalty based on race. Given the juror's statements it seems almost certainly he decided the case based on race.

And in what universe does a juror who knows the victims and maybe the defendant get to serve on a jury?

So, sorry for hijacking the post here, but both of these events would seem to be a major attack on the fundamental basis of justice and rule of law in this nation. Surely each of these cases and the Supreme Court position, even if Thomas is in a minority, deserve commentary on this most excellent of forums. Take Ginsburg and Breyer off the Court and Thomas's opinions stand.

TV celebrity President Trump responds to the "Fire and Fury" claim of unfitness by claiming to be a "stable genius" which was an unintended reminder to some of us older folks (potential dotards) of an earlier TV celebrity "Mr. Ed."

Since Mr. Ricardo 'opened the door'; on a case in which I totally agree with his opinion, this comment pertains to the results of a successful removal of Trump from office.Consider the likely result: His replacement functioning with a 'closed mouth' "No Comment" policy supplemented by carefully parsed lies issued only in printed press releases.

To Shag: The Per Curiam opinion was not a final opinion but a remand and the opinion specifically stated that Tharpe might not prevail with the Circuit Court when it reconsiders its position. So criticism of Per Curiam unsigned opinions might not be as appropriate here compared to a final order.

To Joe: Many times, but not always a Court that dismisses based on standing is really saying they just do not want to consider the issue. That may have been the case with respect to the Mississippi law but given the coming decision on the Colorado case it seems that if the Court was open to forbidding discrimination in commerce based on sexual preference it would have just ignored the Mississippi appeal until the Colorado case is decided and an opinion released. The fact that the Court did not do this should give great concern to those of us who believe in equality before the law. But as I said when the doctor in the delivery room asked if I wanted to cut the embilical cord "Aren't there more qualified people in this than me who should be doing that?" so hopefully those more qualified people will opine on this issue in the future.

I don't think you have precisely identified the overlap in underlying standards that proponents of the argument (of which I count myself) subscribe to. At least in my conception, the underlying substantive question of the two mechanisms for presidential removal is not whether the president is "dangerously unfit." It is whether the president has sufficient political support in the relevant decision-making body. In a parliamentary system, one needs no reason to remove an executive other than "we have the votes," and I basically think impeachment works the same way (not that I necessarily think it ought to work in the same way, my point is purely descriptive, in that I think as a realistic matter in today's politics, one party will impeach and convict the other party's president for jaywalking as soon as they have the votes). Ostensible standards like "high crimes and misdemeanors" or "unable to discharge duties" are purely parchment barriers that will be circumvented by post-hoc filling-in-the-blank.

Because I think the substantive standard is completely empty, the only difference between motions of no confidence (in parliamentary systems), impeachment, and 25th amendment becomes the size of the super-majority required, and since the 25th amendment requires a bigger majority in all conceivable scenarios, it is simply not worth discussing. So in a sense I agree with you that impeachment and the 25th amendment overlap in their substantive goal; but I think you make a simple issue too complicated, and you misdiagnose a partial overlap when the overlap is complete and total.